So long labor rights, we hardly knew ye.
Today the Fifth Circuit issued a decision neutering the National Labor Relations Board’s ability to prosecute unfair labor practice. In a decision authored by Judge Don Willett, the circuit court furthest to the right decided the NLRB’s structure is likely unconstitutional. In the matter before the Fifth Circuit three separate employers — SpaceX, Energy Transfer and Aunt Bertha — argued that the limits on president’s ability to remove board members and administrative law judges are unconstitutional.
And the panel agreed. They affirmed the injunctions freezing the enforcement actions against the employers, writing, “The Constitution does not countenance unlawful power. And when the Constitution draws boundaries, neither agency expedience nor institutional inertia can erase them.”
Specifically, cautioning against over-reliance on Humphrey’s Executor, the current conservative punching bag, Willett holds in this consolidated action that federal law’s removal protections for board members and agency judges likely violates the constitution. Willett writes, “The Employers have made their case and should not have to choose between compliance and constitutionality. When an agency’s structure violates the separation of powers, the harm is immediate—and the remedy must be, too.”
Deep sigh. How dumb must all the judges and justices that have heard NLRB matters, implicitly blessing the structure, over the agency’s 90 year history feel right now?
It’s another win for Donald Trump’s uniquely expansive view of presidential power, and gives the Supreme Court yet another opportunity to bend to that vision of the presidency.
Read the full decision below.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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